Electoral jurisprudence in the Canadian and U.S. Supreme Courts: evolution and convergence.

• Author: Manfredi, Christopher

An ongoing theme in the study of American and Canadian constitutional law is the difference in the two nations' constitutional traditions and the correspondingly divergent paths taken by the two Supreme Courts when interpreting democratic rights. The authors argue that a convergence in the two nations' judicial thought has occurred in recent Supreme Court decisions dealing with voting rights in particular and with the electoral process in general This convergence is clearly manifested in lines of cases culminating in recent campaign-spending decisions in Canada (Harper v. Canada (A.G)) and the United States (McConnell v. Federal Election Commission and Randall v Sorrell). The two courts sustained campaign-spending restrictions for essentially the same reasons. Yet the dissenters in both courts expressed almost identical fears about the threats that such spending restrictions posed to the integrity of the democratic process. Thus, the complexities of the "political thicket" of election law have drawn the American and Canadian Supreme Courts together. Both courts acknowledge that competitiveness is a key component of a meaningful electoral process and that incumbent political powers may cloak barriers to competition in the mantle of legislation designed to reform the political process or make it fairer. This evolution and convergence in judicial thought has caused both Supreme Courts to reassess their roles as protectors of individual rights and checks upon their legislatures.

Parmi les themes recurrents du domaine du droit constitutionnel americain et canadien, on retrouve celui de la difference entre tes traditions constitutionnelles des deux etats, ainsi que celui des parcours divergents des deux Cours supremes dans leur interpretation des droits democratiques. Les auteurs suggerent que des decisions recentes rendues par ces Cours supremes revelent une convergence au niveau de la pensee juridique en ce qui a trait aux droits de vote en particulier, et au processus electoral en general. Cette convergence se manifeste clairement dans une foulee d'arrets cuhninant avec les decisions recentes traitant des depenses de campagne electorale au Canada (Harper c. Canada (P.G)) et aux etats-Unis (McConnell v. Federal Election Commission et Randall v. Sorrell). Les deux cours ont soutenu des restrictions sur les depenses de campagne electorale. Cependant, dans chacune des cours, la dissidence a exprime des inquietudes quasi identiques quant aux menaces a l'integrite du processus democratique que pourraient poser de telles restrictions. Ainsi, c'est la complexite de la futaie politique du droit electoral qui a su rapprocher les Cours supremes americaine et canadienne. Les deux cours reconnaissent que la competitivite represente un element clef d'un processus electoral convenable et que les titulaires du pouvoir politique peuvent voiler les obstacles a la concurrence par le biais de projets legislatifs axes sur la reforme ou l'equite du processus politique. Cette evolution et convergence de la pensee juridique a precipite un questionnement au sein des deux cours sur leur role au niveau de la protection des droits individuels et sur la necessite de mettre un frein au pouvoir legislatif.

Introduction I. Commonalities II. Terms of Discourse III. American Individualism? The Canadian Understanding of Buckley v. Valeo IV. A Different Canadian Vision? The Egalitarian and Libertarian Conceptions of Democracy in Canada A. Background: The Egalitarian Mode in the Canadian Court B. The Development of the Egalitarian Model in the Canadian Court 1. Libman v. Quebec (A. G) 2. Figueroa v. Canada (A. G) 3. Harper v. Canada (A.G): The Retreat from the Egalitarian Model? V. The Dark Side of the Egalitarian Vision? Chief Justice McLachlin's Break with the Court VI. An American Parallel: The Canadianization of American Electoral Law? A. Removal of Corrupt Influences B. Incumbent Entrenchment VII. Implications and Conclusion: The Evolution of Chief Justice McLachlin's Vision of the Democratic Process and the Convergence in American and Canadian Judicial Thought Introduction

An ongoing theme in the study of American and Canadian constitutional law is the difference in the two nations' constitutional traditions and the correspondingly divergent paths taken by their respective Supreme Courts when interpreting democratic rights. (1) American commentators such as Mary Ann Glendon commented early on that the Canadian Charter of Rights and Freedoms (2) "diverges in both letter and spirit from its American counterpart in important respects.... [It] has avoided hard-edged, American-style proclamations of individual rights." (3) As well, she observed that the framers of the Charter, in contrast to their American counterparts, recognized the importance of balancing individual and community interests. (4)

In some respects, the divergence of Canada from the United States is cast in terms of the natural, organic development of law. As the Supreme Court of Canada ("Canadian Court") stated in Law Society of Upper Canada v. Skapinker, "The courts in the United States have had almost two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts." (5) In other respects, however, the divergence represents a conscious attempt to take the jurisprudential road not taken by the United States and thereby establish a unique, Canadian approach to questions of rights in general and the electoral process in particular?

Within this context, scholars of election law have also emphasized the marked contrast of the Canadian experience and that of the United States concerning judicial oversight of laws regulating the electoral process. As John Courtney--one of Canada's leading scholars on election law--notes in much of his work, the differences are a product of the greater acceptance in Canada than in the United States of the responsibility of government to establish electoral practices that are nonpartisan and whose effect will be as widely inclusive of the citizenry as possible. (7)

A good example of the difference in electoral law concerns the approaches taken to "rep by pop" in the two Supreme Courts. In Baker v. Carr (8) and Reynolds v. Sims, (9) the Supreme Court of the United States ("American Court") established the "one person, one vote" standard. In Reynolds, Chief Justice Warren asserted that the American conception of the franchise would be based on the one person, one vote principle: "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. ... Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there." (10)

The American Court's adherence to this individually focused principle (at least with regard to congressional districts (11)) has led to intractable, unproductive conflicts concerning the decennial redistricting process. Insofar as the court has endorsed the Justice Department's interpretation of section 2 of the Voting Rights Act of 1965 (12) (requiring states to draw districts in a manner that promotes minority representational opportunities), its adherence to the one person, one vote requirement has necessitated the creation of legislative and congressional districts whose borders can only be described as bizarre. (13) Since minority populations are not always located in geographically compact areas, the state legislatures (which are constitutionally empowered to draw legislative and congressional districts) have had to draw oddly shaped districts that snake around, picking up pockets of minority voters until they are able to construct a district with a "majority-minority" population.

A more moderate, balanced resolution to this conflict between group rights to representation and individual rights to equal voting power is found in the Canadian Court's decision in Reference Re Prov. Electoral Boundaries (Sask.). (14) Justice McLachlin (as she then was) dismissed the American one person, one vote standard for redistribution as "undesirable because it has the effect of detracting from the primary goal of effective representation." (15) She stated:

Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic. These are but examples of considerations which may justify departure from absolute voter parity in the pursuit of more effective representation; the list is not closed. (16) As a result, the Canadian process of drawing legislative district boundaries has been much less contentious and more consciously aimed at balancing individual and group claims to effective representation. (17)

Similarly, in Sauve v. Canada (Chief Electoral Officer), Chief Justice McLachlin distinguished the theoretical conceptions of rights that form the foundations for American and Canadian election law:

[D]enying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. The government's novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation. That not all self-proclaimed democracies adhere to this conclusion says little about what the Canadian vision of democracy embodied in the Charter permits. (18) Finally, a more recent work on Canadian and American jurisprudence concerning campaign-spending limitations begins: "Opponents of the wholesale importation of U.S. political finance jurisprudence into the U.K. and Canada welcomed the recent decisions of the...